An article has recently appeared in the Daily Mail and on other websites about a case in which marks were seen on a small child’s face and that child ended up subject to social services’ involvement for roughly two months of her life.
Her parents have chosen to publicise the case in an effort to raise awareness of milk allergies causing marks that can look like bruising.
In this case I represented the Father, Jai. This blog is not about what the marks turned out to be – I don’t know about that as my involvement had ended by then. This blog is about what you should do if you find yourself in hospital with your child facing allegations of causing injuries to them.
People take their children to hospital for any number of reasons. It is always scary and, unless you are a medical professional yourself, much of what happens will pass in a blur. You may be entirely unaware that the staff are wondering whether your child’s injuries were caused by you, or a member of your household. You may only know that they are doing a lot of tests, taking photos, doing more tests, asking you to stay in for longer.
If the hospital believe the injuries are non-accidental they will eventually say to you that they have to call social services because they have concerns, and they will mention ‘non-accidental injury’ (or NAI).
By that point they already have a huge amount of information about your child’s injury. There will be pages and pages of nursing notes that record (amongst other things) when you are present, how you cared for your child, what questions you asked and how you presented. There are photographs, x-rays, scans and maybe MRIs. There are notes of what all the doctors are considering may be wrong. There are notes of conversations they have with their colleagues or with the police or social worker.
When the hospital thinks an injury may have been caused non-accidentally, or on purpose, they speak to a hospital social worker. They prepare a report in contemplation of court proceedings. That social worker speaks to their legal team and decisions are made, often very quickly, about whether they will seek a court order in relation to your child. Sometimes it is only then that you are told of their plans.
I do not want to frighten you but I set this out to make it very clear that in terms of evidence gathering the local authority is always significantly ahead of you and this is just the first problem you face at court.
A local authority does not decide to bring an injury case without evidence from medical professionals and they always seek evidence from the most senior of the treating doctors (usually a paediatric consultant). They write a report stating that they believe the injuries to be non-accidental and it is this that the social worker relies upon.
The local authority then issues an application for an Emergency Protection Order (EPO) and the case comes to court very quickly (the same day or the next).
If the local authority applies for an EPO they are seeking to separate the child from her parents to safeguard her. They will argue that her safety depends upon being separated, or sometimes, supervised. A Judge is asked to make a decision based on the evidence before her and usually that is simply the medical evidence. At that stage it would be a rare judge who would risk further injuries by leaving a child wholly unsupervised in her family.
Remember that the local authority already has evidence and the parents do not.
Sometimes we can negotiate a compromise, such as the placement of the child and a parent in a supervised setting (foster care usually) while further investigations are undertaken. However, this involves an acceptance by the parent that the local authority have legitimate worries on some level, and not all parents can do that.
Jai was separated from his daughter at this stage when Ashleigh went into a supervised foster care placement with their daughter.
An EPO only lasts a short period so parents find themselves in court again within the week. Their situation has not really improved because it is usually impossible to gather evidence from medical professionals in a week, so they have to make the same decisions again when the local authority requests an Interim Care Order (ICO).
In most cases that involve injuries to small children the parents’ lawyers advise caution. Challenging the local authority when we have no supportive evidence is risky. Gathering evidence takes time. We need to know what evidence might exist before we can even request it. We might suggest an expert looks at the child’s injuries and forms an independent view of causation, but that takes months. And so on.
So what’s the solution?
In some cases we have enough information very early on to know that evidence that supports what the parents say exists and where to get it. This is fairly rare but in this circumstance we should be challenging the local authority to prove their case as early as possible.
There are many problems with this suggestion – delays in obtaining medical records and reports can be extensive; judges do not always have availability; the treating doctors and nurses may not be available to attend court; there may not be a court room available – but I say persevere.
The law is clear that the local authority have to prove their case and you need to make a very carefully considered decision about when to make them do that. It will not be right in all cases to challenge early but I have now had two ‘injury’ cases in which we have put the local authority to proof early in the proceedings, and the case has ended because they did not have the convincing evidence they thought they had.
What else have I learned?
Take a very detailed account from a parent as early as possible. This means parents should be calling lawyers as soon as they are aware that the hospital is alleging that their child has been injured.
Make sure that if there are numerous medical professionals involved in the treatment of the child they all have each other’s notes. In Jai’s case this was the crux of the matter.
Never call marks ‘bruises’ until there is clear evidence that they are. Until then they are marks on a child and causation is unknown.
If you are a parent, call a lawyer as soon as there is an allegation against you.
And although I have not dealt with it above, never give a police interview without a solicitor.
I specialise in cases involving injuries to children and I will always visit you in the hospital to talk everything through.